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Champagne, Anthony, Daniel W. Shuman, and Elizabeth Whitaker. 1996. The Problem with Empirical Examination of the Use of Court-Appointed Experts: A Report of Nonfindings. Behavioral Sciences and the Law 14:361-365.

Darwin, Charles. 1948 [1859]. The Origin of the Species by Means of Natural Selection or the Preservation of Favored Races in The Struggle for Life and the Descent of Man and Selection in Relation to Sex. New York: Modern Library.

Shuman, Daniel W. 1997b. What Should We Permit Mental Health Professionals to Say about "The Best Interests of the Child"? An Essay on Common Sense, Daubert, and the Rules of Evidence. ABA Family Law Quarterly 31:551-569.

Shuman, Daniel W., and Anthony Champagne. 1997. Removing the People from the Legal Process: The Rhetoric and Research on Judicial Selection and Juries. Psychology, Public Policy, and Law 3:242-258.

Shuman, Daniel W., and Bruce D. Sales. 1998. The Admissibility of Expert Testimony Based upon Clinical Judgment and Scientific Research. Psychology, Public Policy, and Law 4:1226-1252.

Simon, Robert I., and Daniel W. Shuman. 1999. Conducting Forensic Examinations on the Road: Are You Practicing Your Profession without A License? Journal of the American Academy of Psychiatry and Law 27:75-82.

Slobogin, Christopher. 1998. Psychiatric Evidence in Criminal Trials: To Junk or Not to Junk? William and Mary Law Review 4:1-56.

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Weinstein, Jack B. 1998 Science, and the Challenges of Expert Testimony in the Courtroom. Oregon Law Review 77:1005-1017.

Notes

(a) This article was originally presented as a background paper for "'Evidence': Its Meanings and Uses in Law, Medicine, and Health Care," a workshop jointly sponsored by the Institute of Medicine and the Agency for Healthcare Research and Quality in Washington, DC, on 10 April 2000. The author gratefully acknowledges the helpful comments of Jacqueline Besteman, William Bridge, Deborah Hankinson, Clark C. Havighurst, Peter D. Jacobson, Wilhelmine Miller, Ellen Pryor, Bruce Sales, and Paula Sweeney and the workshop participants on an earlier draft of the article. Michael Heinlen provided invaluable research assistance in the preparation of this essay.

1. See also Lowry v. Henry Mayo Newhall Memorial Hospital (229 Cal. Rptr. 620, 621-22 [Cal App. 1986] ["Plaintiffs charged that defendant acted in bad faith by arbitrarily deviating from the American Heart Association guidelines for advanced cardiac life support by administering the drug Atropine rather than Epinephrine. Plaintiffs argued that had Epinephrine been administered instead of Atropine, decedent's chances of survival would have dramatically increased. . . . In reply, defendant directed the court to deposition testimony excerpts in which she explained that the American Heart Association guidelines are mere guidelines that may be altered by the physician. She explained that she administered Atropine because it is one of the drugs used as a first line to start the heart after the monitor reveals that there is no cardiac activity. This evidence was unrefuted."]).

First, many experts are members of the academic community who supplement their teaching salaries with consulting work. We know from our judicial experience that many such able persons present studies and express opinions that they might not be willing to express in an article submitted to a refereed journal of their discipline or in other contexts subject to peer review. We think that is one important signal, along with many others, that ought to be considered in deciding whether to accept expert testimony. Second, the professional expert is now commonplace. That a person spends substantially all of his time consulting with attorneys and testifying is not a disqualification. But experts whose opinions are available to the highest bidder have no place testifying in a court of law, before a jury, and with the imprimatur of the trial judge's decision that he is an "expert." . . . [W]e take this occasion to caution that the standard leaves appellate judges with a considerable task. We will turn to that task with a sharp eye, particularly in those instances, hopefully few, where the record makes it evident that the decision to receive expert testimony was simply tossed off to the jury under a "let it all in" philosophy. Our message to our able trial colleagues: it is time to take hold of expert testimony in federal trials.

4. Although the rationale for this criticism of jury decision making capacity is rarely set forth explicitly in its entirety, pieced together its reasoning is as follows. First, experts testify to scientific, technical, or other specialized knowledge with which jurors, not chosen because they possess any specialized knowledge, are unlikely to be familiar. Second, jurors, unlike judges, are not generally worldly, well educated, and trained in rigorous analytical skills necessary to assess critically the new, unfamiliar information that experts present. Third, lacking the requisite worldliness, education, and analytical skills, jurors resort to irrational decision-making strategies to determine whether to believe an expert, that rely on considerations such as the expert's appearance, personality, or presentation style (Shuman and Champagne 1997: 251-252).

5. "We have held that abuse of discretion is the proper standard of review of a district court's evidentiary rulings. . . . Indeed, our cases on the subject go back as far as Spring Co. v. Edgar, 99 U.S. 645, 658, 25 L. Ed. 487 (1879), where we said that 'cases arise where it is very much a matter of discretion with the court whether to receive or exclude the evidence; but the appellate court will not reverse in such a case, unless the ruling is manifestly erroneous.' The Court of Appeals suggested that Daubert somehow altered this general rule in the context of a district court's decision to exclude scientific evidence. But Daubert did not address the standard of appellate review for evidentiary rulings at all" (General Electric Co. v. Joiner, 522 U.S. 136, 140 [1997]).

6. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), a 1923 decision of the District of Columbia Court of Appeals addressing the admissibility of a precursor of the polygraph, articulated a test that came to be accepted as the standard for the admissibility of novel scientific evidence in many state and federal courts:

The rule is that the opinions of experts or skilled witnesses are admissible in evidence in those cases in which the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it, for the reason that the subject-matter so far partakes of a science, art, or trade as to require a previous habit or experience or study in it, in order to acquire a knowledge of it. When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence. (Frye, 293 F. at 1014)

Frye's critics complained that it was impracticable and did not directly address the quality of the science. In the face of this criticism, the failure of the Federal Rules of Evidence to address the continued viability of Frye led to a split in the federal circuits and ultimately to the Daubert decision resolving the issue.

7. Section 11 of the 1999 discussion draft Restatement (Third) of Torts: General Principles, focuses on custom. That discussion includes the following:

(a) The actor's compliance with the custom of the community, or of others in like circumstances, is evidence that the actor's conduct is not negligent, but does not preclude a finding of negligence.

(b) The actor's departure from the custom of the community, or of others in like circumstances, in a way that increases risks is evidence of the actor's negligence but does not require a finding of negligence.

8. According to Section 4 of the 1999 discussion draft of Restatement (Third) of Torts: General Principles,

An actor is negligent in engaging in conduct if the actor does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether conduct lacks reasonable care are the foreseeable likelihood that it will result in harm, the foreseeable severity of the harm that may ensue, and the burden that would be borne by the actor and others if the actor takes precautions that eliminate or reduce the possibility of harm.

Comments:d. Explanation. Insofar as this section identifies the primary factors for ascertaining negligence, it can be said to set forth a "risk-benefit test" for negligence, where the "risk" is the overall magnitude of the risk created by the actor's conduct and the "benefit" is the advantages that the actor or others gain if the actor refrains from risk prevention measures.

9. Bunting v. Jamieson, 984 P.2d 467 (Wyo. 1999) (trial court abused discretion in excluding expert testimony of physician on causation issue in medical malpractice case based upon judgment of failure to satisfy Daubert "peer review" factor); Williams v. Hedican, 561 N.W.2d 817 (Iowa 1997) (trial court abused discretion under Daubert in medical malpractice case in excluding expert's testimony that defendant's negligence in failing to treat pregnant woman for chicken pox resulted in child being born blind in one eye. "We do not accept the proposition that statistical proof has to be presented before a medical expert can testify on causation.").

10. "We find no merit to Sippio's assertion that Dr. Smialek's expertise as a forensic pathologist did not qualify him to render an opinion as to manner of death. Dr. Smialek was qualified as an expert in forensic pathology without challenge by the defense. Moreover, Dr. Smialek explained that forensic pathologists are 'trained to recognize certain patterns of injury and [have] to be familiar with gunshot wounds . . . so that [they] can render a proper diagnosis in an attempt to reconstruct the events surrounding the sudden death of an individual.' His testimony as to manner of death was, therefore, consistent with his extensive medical training and professional experiences" (Sippio v. State, 714 A.2d 864, 872 [Md. 1998]).

11. "Courts, as gatekeepers, must be aware of how difficult it can be for some parties-particularly indigent criminal defendants—to obtain an expert to testify. The fact that one side may lack adequate resources with which to fully develop its case is a constant problem" (Weinstein 1998: 1008).